Vicente Ochoa v. The State of Texas--Appeal from 222nd District Court of Deaf Smith CountyAnnotate this Case
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
APRIL 21, 2010
VICENTE OCHOA, APPELLANT
THE STATE OF TEXAS, APPELLEE
FROM THE 222ND DISTRICT COURT OF DEAF SMITH COUNTY;
NO. CR-06J-146; HONORABLE ROLAND D. SAUL, JUDGE
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant Vicente Ochoa appeals from the revocation of his community
supervision and the resulting sentence of five years of imprisonment in the Institutional
Division of the Texas Department of Criminal Justice. Through three issues, appellant
argues the trial court erred in not making a written statement regarding revocation of his
community supervision and abused its discretion by finding a breach of the terms of
appellant=s community service; and contends the State=s motion to revoke inadequately
informed appellant of the State=s allegations. We find no error and, as modified, affirm
the trial court=s order to revoke.
On January 24, 2007, appellant entered a plea of guilty to the offense of felony
driving while intoxicated. 1 As part of his agreement with the State, appellant was placed
on community supervision for a period of five years.
Appellant=s supervision was
subject to certain terms and conditions.
On August 8, 2007, the State filed its First Amended Motion to Revoke Probation,
alleging: (1) on or about May 1, 2007, appellant committed the offense of Indecency
with a Child in violation of his probated sentence; (2) appellant failed to remain within
the confines of Deaf Smith County, Texas, in violation of his probated sentence; and (3)
appellant failed to perform his community service hours, in violation of his probated
sentence. The court heard the State=s motion on May 13, 2008.
At the hearing, the State waived the Indecency with a Child allegation 2 and
proceeded on the remaining two allegations. Appellant plead Anot true@ to each of the
State=s remaining allegations.
The State presented the testimony of appellant=s
community supervision officer and a Deaf Smith County police officer. Appellant crossexamined each of the State=s witnesses and presented the testimony of appellant=s wife
during the punishment phase of the hearing.
See Tex. Penal Code Ann. ' 49.09 (Vernon 2007).
The record indicates the State waived this allegation because there was a
pending case on that offense at the time of this hearing.
Appellant=s community supervision officer testified that under the terms of
appellant=s community supervision, he was required to: (1) work at least eight hours per
week toward his required 160 hours of community service until the completion date of
August 15, 2007; and (2) to remain within the confines of Deaf Smith and Oldham
Counties and not to leave without written permission of the court. The supervision
officer testified appellant completed only seven hours of his community service
requirement from the time he was placed on probation in January 2007 and that he
completed these hours at the Alcoholics Anonymous building. The officer testified that
he repeatedly explained the requirements, assured himself of appellant=s understanding
of the requirements, and attempted to place appellant in a community service project
that was convenient for him. The officer testified that according to his records for the
months of February, March, April, and May 2007, appellant had not completed any
community service hours and completed only seven in the month of June 2007.
Appellant did not complete any hours in July or August 2007.
Appellant=s community supervision officer also testified appellant never
requested that he be given a travel permit to go to El Paso, Texas. The officer also
indicated he spoke with appellant about that issue on August 2, 2007. A Deaf Smith
County police officer identified appellant in the courtroom and testified that on or about
July 25, 2007, he left Deaf Smith County and traveled to El Paso County to transport
appellant back to Deaf Smith County. On cross-examination, the officer indicated the
actual date was July 30, 2007. Appellant was in custody in El Paso at the time the
officer retrieved him.
The court heard this evidence, considered the arguments of counsel, and found
the State=s allegations to be true.
The court then heard punishment evidence and
sentenced appellant to five years of imprisonment. This appeal followed.
Failure to Provide Written Statement Concerning Grounds for Revocation
In his first issue, appellant argues the trial court erred in failing to provide a
written statement as to the evidence relied on and the reasons for revoking community
supervision, thereby violating appellant=s due process rights. We disagree. 3
Due process in the revocation context requires: (1) a hearing; (2) written notice of
the claimed violations; (3) disclosure of the evidence against the defendant; (4) an
opportunity to be heard and to present witnesses and documentary evidence; (5) a
neutral hearing body; and (6) Aa written statement by the fact finder as to the evidence
We address issues one and three raised by appellant but we do not address
issue two. In his second issue, appellant complains of the sufficiency of the evidence
only with regard to the allegation concerning his failure to complete his community
swevice. Even if we were to agree with appellant on his second point, proof of one
violation is sufficient to revoke community supervision. See Moore v. State, 605 S.W.2d
924, 926 (Tex.Crim.App. 1980) (panel op.); Trevino v. State, 218 S.W.3d 234, 240
(Tex.App.BHouston [14th Dist.] 2007, no pet.) citing Greer v. State, 999 S.W.2d 484, 486
(Tex.App.BHouston [14th Dist.] 1999, pet. ref=d). With regard to the State’s allegation
concerning appellant’s failure to remain within the confines of Deaf Smith and Oldham
Counties, appellant complains only of the lack of notice in the State’s motion.
relied on and the reasons for revoking probation.@ Carmona v. State, 185 S.W.3d 492,
495 (Tex.Crim.App. 2006), citing Gagnon v. Scarpelli, 411 U.S. 778, 786, 93 S.Ct. 1756,
36 L.Ed.2d 656 (1973). When a defendant timely requests the entry of specific findings
of fact on which revocation is based, the trial court errs in failing to enter such findings
of fact. Whisenant v. State, 557 S.W.2d 102, 105 (Tex.Crim.App. 1977); Joseph v.
State, 3 S.W.3d 627, 639 (Tex.App.BHouston [14th Dist.] 1999, no pet.). The failure to
make the requested findings may require reversal if their omission impedes appellate
review of the revocation. Joseph, 3 S.W.3d at 639, citing Ford v. State, 488 S.W.2d
793, 795 (Tex.Crim.App. 1972).
However, the trial court is not required to issue
separate findings if the judgment or revocation order discloses the grounds for
revocation found by the court.
See Joseph, 3 S.W.3d at 640 (concluding that
handwritten notations on the revocation order sufficed).
Here, the record reflects appellant did not request the entry of specific findings of
fact. The judgment listed the conditions violated by paragraph number and description
of the condition. The record also reflects the trial court orally specified the particular
conditions violated and their factual bases at the end of the revocation hearing, finding
each of the two violations Atrue.@ The court=s written judgment recites, A[t]he Court, after
hearing all of the evidence for the State and the Defendant and arguments of counsel,
was of the opinion and found that the Defendant violated the conditions of community
supervision as stated above.@ Thus, the record shows appellant was afforded adequate
notice of the grounds underlying the court=s revocation, and his ability to prosecute an
appeal was not diminished by the absence of further findings. See Reasor v. State, 281
S.W.3d 129 (Tex.App.BSan Antonio 2008, no pet.) We overrule appellant=s first issue.
Notice in State=s First Amended Motion to Revoke
In appellant=s last issue, he contends his due process rights were violated
because the State=s amended motion stated that A[t]he defendant probationer
[appellant] failed to remain within the confines of Deaf Smith County, Texas in violation
of Article 13 of his probated sentence. He was in El Paso, Texas on or about July 25,
2007.@ However, testimony at trial indicated appellant was transported on July 30,
Appellant never claimed surprise or requested a continuance of the hearing
based on the different dates. Nevertheless, appellant now argues the difference in the
dates constitutes a material variance that violated appellant=s due process rights
because the motion did not provide notice of the charges against appellant.
We find the State=s motion provided adequate notice of the charges against
appellant. Due process entitles probationers facing a revocation proceeding to written
notice of their alleged violations. Ruedas v. State, 586 S.W.2d 520, 523 (Tex.Crim.App.
1979), citing Gagnon, 411 U.S. at 778; Weed v. State, 891 S.W.2d 22, 24 n.4
(Tex.App.BFort Worth 1995, no writ).
An application to revoke need not meet the
specificity requirements of an indictment or information; it is sufficient that the State
allege a violation of the law and give the probationer fair notice. Pierce v. State, 113
S.W.3d 431, 436 (Tex.App.—Texarkana 2003), citing Chacon v. State, 558 S.W.2d 874,
876 (Tex.Crim.App. 1977). See also Poteet v. State, No. 07-06-0238-CR, 2008 WL
2579675, *2 (Tex.App.BAmarillo June 27, 2008, no pet.) (mem. op., not designated for
It is well established that the State may allege the commission of an offense Aon
or about@ a certain date, and this allegation allows the State to prove any date that is
anterior to presentment and within the statutory limitations period. See Garcia v. State,
981 S.W.2d 683, 685-86 (Tex.Crim.App. 1998); Sledge v. State, 953 S.W.2d 253, 256
(Tex.Crim.App. 1997); Ferrell v. State, 968 S.W.2d 471, 473 (Tex.App.BFort Worth
1998, pet. ref=d). An indictment that alleges an Aon or about@ date puts a defendant on
notice that he must be prepared to defend against the alleged act of criminal
misconduct within the applicable statute of limitations. See Garcia, 981 S.W.2d at 686;
Ferrell, 968 S.W.2d at 473; Kosick v. State, No. 02-06-056-CR, 2007 WL 2460351
(Tex.App.BFort Worth Aug. 31, 2007, no pet.) (mem. op., not designated for
publication). Given the less restrictive requirements that apply in a revocation hearing,
we find the same principle applies to motions to revoke. See Pierce, 113 S.W.3d at 436.
See also Mauney v. State, 107 S.W.3d 693, 695 (Tex.App.—Austin 2003, no pet.),
citing Labelle v. State, 720 S.W.2d 101, 104 (Tex.Crim.App. 1986) (the State is free to
prove a violation occurred any time before the filing of the motion to revoke and during
the probation period so long as the State pleads the violation occurred “on or about” a
specified date and that it occurred while the defendant was on probation). Therefore,
the State=s allegation of Aon or about July 25, 2007" encompasses the date of July 30,
2007, on which the police officer retrieved appellant from El Paso, Texas. We find no
due process violation as the motion provided adequate notice of the term appellant was
alleged to have violated. We overrule appellant=s last issue.
Reformation of Judgment
In our review of the record, it came to our attention that the judgment nunc pro
tunc includes a clerical error. The judgment indicates appellant plead “true” to the
State’s allegations. The reporter’s record indicates appellant plead “not true” to the
This court has the power to modify the judgment of the court below to make the
record speak the truth when we have the necessary information to do so. Tex. R. App.
P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27-28 (Tex.Crim.App. 1993); Asberry v.
State, 813 S.W.2d 526, 529-30 (Tex.App.--Dallas 1991, pet. ref'd). "The authority of an
appellate court to reform an incorrect judgment is not dependent upon the request of
any party, nor does it turn on the question of whether a party has or has not objected in
the trial court." Asberry, 813 S.W.2d at 529-30.
Because the record unambiguously indicates appellant plead “not true” to the
State’s allegations, we modify the judgment nunc pro tunc to correct the error. As
modified, we affirm the judgment of the trial court.
James T. Campbell
Do not publish.